The grass is always greener: Keystone XL, transboundary harms, and guidelines for cooperative environmental-impact assessment.

Author:Sassman, Wyatt
 
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ABSTRACT

While general understanding of environmental harms has become more geographically sophisticated, environmental-impact assessment (EIA) law has lagged behind. Although nations now understand complex environmental processes and relationships that extend well beyond their borders, EIA law remains trapped in a domestic structure that is ill-prepared to assess harms outside its jurisdiction. By looking at the U.S. environmental assessment of the Keystone XL pipeline, this Note recasts the problem of transboundary environmental harms in EIA using recent, remarkable events. Key assumptions made in the Keystone XL assessment illustrate that the typical domestic structure of EIA law does not allow adequate assessment of transboundary harms and, thus, undermines the entire purpose of the EIA process. After identifying this problem, this Note suggests a number of guidelines for developing binding, cooperative environmental-assessment agreements between states that would bridge that gap and bring transboundary harms into domestic EIA law.

TABLE OF CONTENTS I. INTRODUCTION II. THE DYNAMICS OF ENVIRONMENTAL-IMPACT ASSESSMENT (EIA) A. From U.S. Law to International Law B. From Substance to Procedure C. International Recognition of the Transboundary Problem III. THE KEYSTONE XL PROBLEM A. Explanation of the Keystone XL Process 1. Understanding the Procedure 2. The Environmental Protection Agency's Transboundary Concerns B. The Department of State's Three Transboundary Assumptions 1. The Oil-Demand Assumption 2. The Extraction-Efficiency Assumption 3. The Land-Use Governance Assumption C. Differentiating Structural Failures from Bad Faith Agency Actors IV. ELEMENTS OF COOPERATIVE INTERNATIONAL EIA A. Scope of the Agreement B. Structure of the Agreement C. Goals of the Agreement D. Content of the Cooperative Assessment E. Benefits of Adopting Cooperative EIA Agreements V. CONCLUSION I. INTRODUCTION

When Professor Robert Socolow was describing major barriers to a sustainable energy future in the United States, he suggested that the country recognize a planetary identity. (1) Ever the provocative thinker, Professor Socolow assigned a daunting name to a relatively simple concept: that the United States should recognize the costs that its energy decisions impose outside its borders. (2) According to Professor Socolow, internalizing the international cost, particularly the environmental cost, of extracting, shipping, producing, and maintaining the immense energy resources necessary to power the United States is essential to realizing the true cost of the nation's energy decisions and to moving towards a sustainable future. (3) This Note is about how to internalize the transboundary costs of a country's energy decisions.

Internalizing the environmental cost of policy decisions has long been the mandate of environmental impact assessments (EIAs). (4) But nearly all EIA law is domestic law that is fundamentally limited by its jurisdiction's borders; at best the law is unprepared to address environmental costs on the other side of the border, and at worst it is incapable of addressing these costs. (5) International law has also been slow to fill the gap in EIA law between domestic jurisdictions. An international convention on the subject received only limited acceptances and achieved limited success. (7) And when EIA law cannot account for transboundary harms, environmental assessments do not reflect the true environmental cost of the decisions and fail to fully inform the decision maker. As such, the problem of transboundary harms remains a well-recognized and persistent problem in EIA law. (8)

This Note is the first to illustrate the transboundary problem using the U.S environmental assessment of the Presidential Permit for the Keystone XL pipeline, a decision that would permit the construction of an oil pipeline across Alberta, through the Midwest United States, and down to the Gulf Coast of Texas to increase the production of Canadian oil sands crude. (9) Political controversy framed the Keystone XL decision as a fundamental indicator of U.S. energy policy and as an excellent example of a decision that defines Professor Socolow's planetary identity. (10) By critically examining the decision's environmental assessment, this Note explains how the domestic structure of the U.S. EIA law artificially discounted the transboundary costs of the Keystone XL pipeline. (11) In particular, this Note focuses on a set of assumptions made in the U.S. assessment that illustrate broadly how the domestic structure of EIA law can lead to inaccurate and incomplete information regarding environmental costs. Having identified the failure of EIA law, this Note argues that a structural change to EIA law is the most effective way to solve the transboundary problem. (12)

To accomplish this structural change, this Note proposes that states enter into cooperative EIA agreements. (13) Drawing from existing international agreements, the final section of this Note lays out essential elements of an effective cooperative EIA agreement, touching on the scope, structure, and goals of the agreement itself, the content of the environmental assessment that should result from the agreement, and the benefits of adopting such agreements. (14)

This Note cannot singlehandedly solve the problem of transboundary harms in EIA law, but it makes an effort to increase dialogue on the issue and move towards a solution. Countries must begin to understand the true environmental impact of their decisions beyond their own borders in order to move towards a sustainable energy future. (15) While the transboundary problem in EIA law is well recognized, reframing the issue in terms of a recent energy-policy decision with clear transboundary effects should breathe new life into the issue and focus the problem at hand. President Barack Obama eventually denied the Presidential Permit for the Keystone XL pipeline because of political concerns, not necessarily substantive concerns about the environmental cost of the project. (16) As such, the President's denial is certainly not the end of the Keystone XL pipeline or the many similar international energy projects that will follow it. (17) Now more than ever, the problem of transboundary harms in environmental assessment law is ripe for discussion and in dire need of a step forward.

  1. THE DYNAMICS OF ENVIRONMENTAL-IMPACT ASSESSMENT (EIA)

    EIA is generally defined as the "process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made." (18) This Part seeks to provide background on the principles and dynamics of EIA, and define the problem of transboundary harms within current EIA regimes. To do so, Part II.A discusses the widespread codification of the EIA process into domestic law through an examination of U.S. EIA law and its broad influence. Part II.B explains how the purpose of domestic EIA has been limited to providing complete and accurate information to the decision maker rather than serving as a substantive check on government actions that implicate the environment. To frame the policy issue at hand, Part II.C discusses international recognition of domestic EIA's failure to account for transboundary harms.

    1. From U.S. Law to International Law

      EIA is most often integrated into domestic legislation, as is exemplified by the U.S. National Environmental Policy Act of 1969 (NEPA). (19) Due to NEPA's remarkable influence on global EIA policy, (20) as well as its importance in the Keystone XL assessment, (21) the U.S. law is a good starting point for discussion of EIA generally.

      NEPA codified Congress's recognition of "the profound impact of man's activity on the interrelations of all components of the natural environment" and the "critical importance of restoring and maintaining environmental quality to the overall welfare and development of man." (22) As such, NEPA expressed "the continuing policy of the Federal Government ... to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." (23) Congress sought to fulfill these goals with EIAs, integrating "natural and social sciences and the environmental design arts in planning and decision-making which may have an impact on man's environment," thus ensuring "that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations." (24)

      To formally integrate environmental concerns into decision making, NEPA requires an environmental impact statement (EIS) for any "major Federal action significantly affecting the quality of the human environment." (25) An EIS must discuss the environmental impact of the proposed action, potential alternatives to the proposed action, "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," and "any irreversible and irretrievable commitments of resources." (26) To help implement these mandates, NEPA set up the executive Council on Environmental Quality. (27) Both the Council on Environmental Quality and other executive agencies that regularly interact with NEPA promulgate regulations on how to best implement NEPA into their specific decision processes. (28) For example, such regulations require that a draft of an EIS be available for public and interagency comment, thus facilitating the participation of all stakeholders in the decision-making process. (29)

      Since NEPA was codified in 1969, over 150 countries have legislated similar domestic EIA requirements. (30) NEPA has served as a model, and most approaches abroad reflect the same core elements that are...

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